Texas Electric Ry. Co. v. Crump

• Decision Date: 12 March 1919
• Docket Number: (No. 6057.)
• Citation: 212 S.W. 827
• Parties: TEXAS ELECTRIC RY. CO. v. CRUMP.
• Court: Texas Court of Appeals

212 S.W. 827

TEXAS ELECTRIC RY. CO. v. CRUMP.

(No. 6057.)

Court of Civil Appeals of Texas. Austin.

March 12, 1919.

On Rehearing, June 4, 1919.

Appeal from McLennan County Court; Jas. P. Alexander, Judge.

Suit by M. Crump against the Texas Electric Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Sanford & Harris, of Waco, for appellant.

Alva Bryan and G. W. Barcus, both of Waco, for appellee.

BRADY, J.

This is a personal injury suit for damages arising out of a collision between a street car of appellant and an automobile in which appellee was riding at the time of the accident. Two grounds of negligence were alleged by appellee: First, that the motorman on the street car was, at the time of the accident, operating the car at a very high and dangerous rate of speed; and, second, that at the time of the injuries an employé in charge of such street car saw appellee in a position of peril in the automobile on appellant's tracks, and failed to exercise proper care to stop the street car, and negligently and wantonly propelled the car into and against the automobile in which plaintiff was riding as a passenger.

The case was tried before a jury, submitted upon a general charge of the court, and verdict and judgment rendered for appellee in the sum of $200.

Appellant's first assignment of error complains of paragraph 11 of the court's charge because it is claimed that it was a charge on the weight of the evidence, in that there was no evidence of any negligence on the part of defendant in the record. The paragraph complained of is as follows:

"Now, you are instructed that if you find from the preponderance of the testimony in this case that on or about the 16th day of February, 1917, the defendant's agents or employés in charge of one of defendant's street cars ran said street car into and against the automobile in which plaintiff was riding, and that the acts of the employés in charge of said street car, in running against said automobile, if they did run against it, were negligence, as that term is herein defined, and that said collision was the direct and proximate result of such negligence, if any, on the part of said employés, and that as the direct and proximate result thereof the plaintiff was injured, then you will find for the plaintiff."

In our opinion, the charge is not open to the objection embodied in this assignment. We agree with appellant that it is error for the trial court to submit to the jury an issue which is not supported by competent evidence, but the proposition is not applicable to this case. There was evidence that the car was being operated on one of the public streets of the city of Waco, approaching a switch on appellant's tracks, very fast, and at the rate of 20 miles an hour, from which the jury might reasonably have inferred that the car at and just before the accident was being operated at a high and dangerous rate of speed, under all the circumstances. There were also facts in evidence from which the jury might reasonably have inferred that the motorman in charge of the street car saw the automobile in which appellee was a passenger, in a perilous position, on or near the switch on appellant's tracks, and that he failed to exercise ordinary care to stop or slow up the street car in time to have averted the injuries. There was evidence tending to show the contrary in both particulars, but this was a fact question for the jury, as was also the question whether such acts or failure were negligence. In this state of the record, it cannot be said that there was no evidence to justify the submission of the issue of negligence, as is asserted in such assignment; and it is therefore overruled.

The second assignment is to the effect that the court erred in submitting the same paragraph of its charge, because it is not supported by any pleadings, and because there is no evidence whatever supporting this issue.

What we have said in disposing of the first assignment applies to the second, and the latter is also overruled.

The third assignment complains of the same paragraph of the charge, because it places a greater burden on appellant than is required by law, in this:

"That it makes the defendant liable for the injuries alleged to have been sustained by the plaintiff, without reference to any negligence on the part of plaintiff that could attribute (contribute) to or was the direct and proximate result (cause) of plaintiff's injuries."

It is well settled that, in order to entitle a party to the benefit of a ground of error contained in a motion for new trial, it must be correctly copied as an assignment in the brief; that is, the assignment must at least be substantially the same as the ground shown in the record. We have examined the transcript, and find that appellant has, in the assignment, made material changes in and additions to the ground as contained in the motion for new trial. Therefore we are of the opinion that this assignment should not be considered; but if it should be considered, we think it should be overruled, because the record discloses that the objections now presented in the assignment in the brief were not the objections made in the motion for new trial. Furthermore, the objection, as actually made below, was contradictory and was confusing, if not unintelligible. It may be added that at most this objection did not point out affirmative error in the court's charge, but a mere omission to qualify or limit it so as to preserve or safeguard appellant's plea of contributory negligence. Appellant asked a special instruction on contributory negligence, curing the alleged omission, but does not assign error in its brief for the failure to give it, and for this additional reason the assignment would have to be overruled, if considered by us. For the reasons indicated, the third assignment will not be considered.

The fourth assignment asserts that the court erred in submitting paragraph 13 of the charge on the measure of damages, because there is not one scintilla of evidence in the record showing damages sustained by appellee.

In view alone of the facts recited in the statement under this assignment in appellant's brief, we are at a loss to understand how such an assignment could be presented. The statement shows that appellee was cut on the forehead, temple, and jaw, one of the wounds having to be stitched up, and the other injuries pulled together with adhesive plaster; that there were wounds on appellee's throat, scalp, and nose; that he remained in bed for at least two days; that his knees were skinned and his breast hurt; that he did not eat anything for eight days; and that because of the pain in the breast he could not walk for three or four weeks. We think it is manifest that there was at least a scintilla of evidence in the record showing injuries; and it should be added that there are additional facts in the record, not deemed necessary to be set out, but which are, in our opinion, ample to sustain the verdict of the jury. It is true the injuries were not serious and probably not permanent, but the verdict was small. Regarding the assignment as without merit, it is overruled.

The fifth assignment is to the effect that the trial court erred in not giving special charge No. 5 requested by appellant, which was as follows:

"You are charged that negligence cannot be presumed from the fact of an accident or injury, but is a fact that must be proven as any other fact in issue."

It is doubtless the law that negligence on the part of either the plaintiff or defendant will not be presumed from the mere fact of accident or injury. Where the evidence shows a case without proof tending to show negligence, such a charge as...